Doing Business with Native American Tribes in Nevada– Part 4

This is the fourth in a series of articles on doing business with Native American Tribes in Nevada. These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

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Federal Courts

Federal courts are courts of limited jurisdiction. They may only hear civil matters arising as a federal question, or by diversity jurisdiction. Federal question jurisdiction allows the court to hear matters where the plaintiff alleges a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.[1] Therefore, most private parties will not have cause to file an action claiming federal question jurisdiction against a tribe.

Diversity jurisdiction requires that all defendants are citizens of a different state or nation than the plaintiff.[2] An Indian tribe is a “stateless entity” that is never subject to federal diversity jurisdiction.[3] A tribal entity, whether a Section 17 corporation, a tribal for-profit entity, or a corporation formed under state law, is a citizen of the state of its principal place of business.[4] If such an entity has waived immunity, it may be sued in federal court under diversity principles.

Finally, even when federal courts otherwise have jurisdiction over a matter arising form on-reservation activities, the court may nevertheless dismiss the action until the parties have exhausted all available tribal remedies regarding whether the matter is properly within the tribe’s own judicial jurisdiction.[5] Once all available tribal remedies have been exhausted, the parties may file with the federal court.

Tribal Courts

Most tribes have their own court systems. Their judges enforce tribal criminal laws and codes, as well as hear civil disputes before them. Tribal courts generally follow their own precedent and sometimes agree to aggregate caselaw with other tribes to build a stronger database of precedent. Generally, tribal courts give deference to the decisions of other tribal courts, and sometimes to federal and state court opinions.

Tribal courts generally have jurisdiction over a suit by any party, whether they are Indian or not, for a claim that happened on the reservation or pursuant to a contract on the reservation. Tribes exercise criminal jurisdiction over Indians on the reservation, but may not prosecute acts by non-Indian U.S. citizens.[6] Certain “major crimes” committed in Indian Country must be prosecuted by the federal government under the Major Crimes Act.[7] Civil jurisdiction over non-Indians is limited to parties “who enter consensual relationships with the tribe . . . through commercial dealing, contract, leases, or other arrangements.”[8]

State Courts

State courts do not have jurisdiction to hear an action arising out of an on-reservation transaction unless the tribe agreed to the state court’s jurisdiction in advance or if the tribe (or entity) brought the action in state court.[9] If a tribe has clearly waived its immunity, its transactions outside the reservation may subject it to being sued in any court capable of exercising jurisdiction over the matter.[10]

[8]Montana v. U.S., 450 U.S. 544 (1981); Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008); but see Nevada v. Hicks, 533 U.S. 353 (2001) (the court has “never held that a tribal court had jurisdiction over a nonmember defendant.”).

[10] In this case, by signing a contract with a clear arbitration provision and choice-of-laws clause, resulting in an agreement to arbitrate under Oklahoma state law. C&L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001).

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Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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